Herrick v R [2012] NZCA 202; [2012] 2 NZLR 520 (22 May 2012)

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT OR ANY PART OF IT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/2012 [2012] NZCA 202

BETWEEN JOSHUA JAMES HERRICK Appellant

AND THE QUEEN Respondent

Hearing: 16 May 2012

Court: Arnold, Ellen France and Venning JJ Counsel: P F Johnson for Appellant

^{C L Mander and M H Cooke for Respondent}

Judgment: 22 May 2012 at 11 am

_{JUDGMENT OF THE COURT}

A We grant leave to appeal but dismiss the appeal.

B Order prohibiting publication of the judgment or any part of it in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest

_{permitted, however.}

JOSHUA JAMES HERRICK V R COA CA165/2012 [22 May 2012]

REASONS OF THE COURT

_{(Given by Arnold J)}

Introduction

[1] The appellant, Mr Herrick, seeks leave to appeal against the decision of Judge Farish granting the Crown’s application for leave to file an amended indictment.¹ The effect of the Judge’s decision is that a further count, namely attempting to pervert the course of justice, will be heard at the appellant’s forthcoming trial on six counts of sexual offending.

Background

[2] The Crown alleges that on 29 October 2008 the appellant and his co-accused took two 16-year-old girls to the appellant’s flat. There the two men plied the girls with alcohol, to the point that both lost their memory of what occurred during the evening. The Crown alleges that the two men engaged in sexual activity with the girls without their consent. They face counts of indecent assault, sexual violation by rape and stupefying the complainants.

[3] The Crown alleges that on 29 October 2008 the appellant and his co-accused made a video recording of the events at issue. A proposed witness, C, will give evidence that he was shown a video clip of the appellant engaging in sexual activity with one of the complainants. C’s evidence will be that the video recording shows the appellant forcing himself on the complainant while she was resisting his advances.

[4] The trial of both accused began on 22 February 2011 in Christchurch. The

Christchurch earthquake intervened and the trial was aborted. Two subsequent trials in Timaru and Greymouth were also aborted for different reasons.

¹ R v Herrick DC Christchurch CRI-2009-009-18321, 22 March 2012.

[5] The Crown alleges that on 18 September 2011, shortly after the aborted Timaru trial, the appellant approached C while they were both waiting for a periodic detention van. The appellant, it is alleged, threatened C, telling him not to give evidence at trial and indicating that if he did, the appellant would have him charged with credit card fraud. It is this conduct that gives rise to the count of attempting to pervert the course of justice.

[6] The Crown brought an application under s 345D of the Crimes Act 1961 for leave to file an amended indictment, adding the charge of attempting to pervert the course of justice to the sexual offending charges. That application was opposed by both accused.

[7] Judge Farish treated the application as one under s 340 of the Crimes Act, which deals with the joinder of counts. The Judge said that the allegation that the appellant had approached C and attempted to dissuade him from giving evidence on the sexual offending charges was admissible in relation to the sexual offending. The Judge went on to hold that there was no unfair prejudice to Mr Herrick in having both sets of charges heard together. The Judge was referred to two decisions of this

Court, namely R v Daleszak² and R v Betti,³ which the Crown said were on all fours

with the present case.

[8] In Daleszak the Crown was granted leave to amend an indictment by joining counts that had previously been in two separate indictments. The counts were first, that the appellant had raped a named complainant on 5 October 2004 and second, that the appellant had, on 9 October 2004, asked the complainant’s partner to ask the complainant to withdraw her allegation that he had raped her. The accused appealed against the joinder decision. This Court dismissed the appeal. It said:

[23] We have no doubt that the Judge was fully entitled to exercise his discretion in the way that he did. It would have been unreal to reach any other decision when the allegations and evidence were so interwoven and interconnected. Contrary to the submissions for the appellant it is clear that the facts are interconnected. The evidence relevant to the allegation of attempting to pervert the course of justice is admissible in the rape trial and it could have probative value in relation to the allegation of rape. Equally

the evidence of rape is relevant to the appellant’s intention in respect of the alleged attempt to pervert the course of justice. The same body of evidence would be common to both trials, notwithstanding that there will also be evidence relevant to one trial or the other. Any prejudice to the appellant will be legitimate and not illegitimate. There is no possible basis upon which it could be appropriate to order separation of the trials.

[9] A similar issue arose in Betti. In that case, this Court simply applied

Daleszak as it considered that case to be “on all fours” with the situation before it.⁴

It also referred to a further decision of this Court, R v Bailey, in which a similar approach was taken.⁵

Basis of appeal

[10] For the appellant, Mr Johnson accepted that the conduct giving rise to the attempting to pervert the course of justice count was relevant to the sexual offending counts. He focussed on the question of undue prejudice if joinder was permitted. Mr Johnson did not seek to challenge the authority of Daleszak (or Betti) but, rather, argued that Daleszak was distinguishable. Before us he emphasised the same two factors that he had emphasised in submissions before Judge Farish:

(a) First, he pointed out that in Daleszak the time period between the alleged sexual offending and the conduct leading to the charge of perverting the course of justice was a few days. In the present case it was almost three years.

(b) Second, and more importantly, he submitted that the effect of joinder in the present case was to force the appellant to give evidence, thus depriving him of his right to remain silent. Mr Johnson said that the appellant did not propose to give evidence on the sexual offending counts. However, to advance his defence on the perverting the course of justice count, he had to give evidence. The result of this was that he would open himself up to cross-examination on all matters.

Discussion

[11] As we have said, the Judge dealt with the Crown’s application to amend the indictment in terms of s 340 of the Crimes Act. No challenge was made to this approach. Section 340(3) provides:

If the Court thinks it conducive to the ends of justice to do so it may order that the accused shall be tried upon any one or more of such counts separately.

[12] Mr Mander for the Crown submitted, on the basis of this Court’s judgment in R v C,⁶ that the appellant was seeking to challenge the exercise of a discretion, so that an error of principle or something approaching irrationality needed to be identified before the appeal could succeed.

[13] We prefer not to approach the matter in that way. The reason for this is that this Court’s characterisation of particular decisions as involving exercises of discretion may need to be re-visited in the light of the decision of the Supreme Court in Rajamani v R.⁷ That case concerned s 374(4A) of the Crimes Act, under which the Court may order that a trial continue with a 10 member jury “because of exceptional circumstances relating to the trial”. The Supreme Court held that although the decision to proceed with 10 members once exceptional circumstances are established is a matter of discretion, whether exceptional circumstances exist in

the first place is a matter of fact requiring judicial evaluation, rather than the exercise of a discretion, and can be corrected on appeal in accordance with ordinary appellate principles.⁸

[14] We heard no argument on this point and so will approach the matter on the basis most favourable to the appellant, namely that s 340(3) involves a judicial

_{evaluation on the “conducive to the ends of justice” issue before the exercise of any}

⁶ _{R v C CA329/00, 6 December 2000 at [21].}

7. Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 723 at [4]–[5], applied in Wong v R [2008] NZSC 29, [2008] 3 NZLR 1 at [3].

⁸ For an example of the application of this approach in other contexts see R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]–[12] and H(CA680/2011) v R [2012] NZCA 198 at [29]– [34]. In relation to admissibility issues, see R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49]–[52].

discretion comes into play, and that evaluation is one in respect of which this Court is entitled to reach its own view.

[15] In our view, neither of the features identified by Mr Johnson provides an appropriate basis for departing from the approach taken in Daleszak and Betti. First, we do not regard the difference in time as a distinguishing factor. Although the conduct alleged to constitute an attempt to pervert the course of justice occurred some time after the prosecution process on the sexual offending counts was underway, all counts still arise out of interrelated events. If the sexual offending and perverting the course of justice counts were to be tried separately, the Crown would have to lead some evidence of the background to former counts to place the latter count in its proper context. Accordingly, the Crown would lead some of the same evidence as would be led at the trial of the sexual offending counts. Moreover, C would have to give evidence at both trials. These considerations point towards

joinder.⁹

[16] Second, we consider that Mr Johnson’s point about the appellant having to give evidence is a relevant but not a decisive consideration. We note that the same argument was made in Daleszak without success.¹⁰ A similar argument has been raised in other contexts. For example, in propensity evidence cases it is sometimes claimed that the introduction of propensity evidence will, as a practical matter, force the accused to give evidence where otherwise he might not have. This Court has treated that as a relevant, but not decisive, consideration.¹¹ Further, we note that the appellant accepts that he engaged in sexual activity with the complainant but claims it was consensual, or at least he had a reasonable belief it was. Given that he did not make a statement to the police and there is little other evidence suggesting that the activity was consensual, it is difficult to see how he can advance this defence effectively without giving evidence. So the prejudice he claims may be more

_{apparent than real.}

⁹ _{R v Mullany CA232/05, 21 November 2005 at [11].}

¹⁰ _{See [17].}

11. R v W [2007] NZCA 408 at [29]. See also Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298 at [15]–[16].

[17] For these reasons we consider that the various counts were rightly joined in a single indictment.

Decision

[18] We grant leave to appeal but dismiss the appeal. Publication of the judgment or any part of it in the news media or on the internet or other publicly available database is prohibited until the final disposition of the trial. Publication in a law report or law digest is permitted, however.

Solicitors:

Crown Law Office, Wellington for Respondent